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Pay Attention to This TPS Lawsuit
2U sues ED over the TPS Dear Colleague Letter
Phil Hill
April 05, 2023
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The Lawsuit
Yesterday 2U filed a lawsuit against Secretary Cardona and the US Department of Education (ED) relating to the TPS Expansion Dear Colleague Letter 23-03.
1. This suit challenges the Department of Education’s brand-new assertion of sweeping regulatory authority over tens of thousands of entities providing key services to institutions of higher education across the United States. The Department’s claim has no footing in the Higher Education Act (HEA), and it marks a complete reversal of the Department’s own settled interpretation of the relevant statutory provisions, as set forth in longstanding regulations and guidance documents. The Department’s unprecedented claim of authority—effectuated in a mere Dear Colleague Letter—is contrary to law and arbitrary and capricious, and it ignores the procedural rulemaking requirements set forth in the HEA and Administrative Procedure Act (APA). This unlawful agency action should now be set aside.
The basic argument by 2U aligns with our coverage here - there was a massive redefinition of TPS scope by adding “functions or services necessary . . . [t]o provide Title IV eligible educational programs”, and ED ignored all rulemaking processes. 2U then argues that ED does not have the authority to make this guidance.
7. The Department lacks unilateral authority to rewrite the HEA’s definition of a third-party servicer. Nor can it impose legal obligations on regulated entities without following the procedural rulemaking requirements of the HEA and APA. Yet that is exactly what the Department is trying to do: The 2023 DCL orders institutions and potential third-party servicers to fully comply with its expanded regulatory mandates by September 1, 2023, under threat of enforcement actions carrying significant consequences